The death penalty in the United States has an interesting history full of twists and turns. Today, this ultimate human punishment is a legal sentence in 32 states, and in the federal civilian and military legal systems. Its application is limited by the Eighth Amendment to the United States Constitution to aggravated murders committed by mentally competent adults.
Capital punishment was a penalty for many felonies under English common law, and it was enforced in all of the American colonies prior to the Declaration of Independence. The methods of execution and the crimes subject to the death penalty vary by state and have changed over time. The most common method since 1976 has been lethal injection.
The first recorded death sentence in the British North American colonies was carried out in 1608 on Captain George Kendall, who was executed by firing squad at the Jamestown colony for allegedly spying for the Spanish government. The largest single execution in United States history was the hanging of 38 Dakota people convicted of murder and rape during the brutal Dakota War of 1862. They were executed simultaneously on December 26, 1862, in Mankato, Minnesota. A single blow from an axe cut the rope that held the large four-sided platform, and the prisoners (except for one whose rope had broken and who had to be re-hanged) fell to their deaths.
Capital punishment was suspended in the United States from 1972 through 1976 primarily as a result of the Supreme Court’s decision in Furman v. Georgia.
In Furman, the Supreme Court considered a group of consolidated cases. In a five-to-four decision, the Supreme Court struck down the impositions of the death penalty in each of the consolidated cases as unconstitutional. In 1976, the Court decided Gregg v. Georgia and upheld a procedure in our state where the trial of capital crimes was bifurcated into guilt-innocence and sentencing phases.
Executions resumed on January 17, 1977, when Gary Gilmore went before a firing squad in Utah. Various methods have been used in the history of the American colonies and the United States but only five methods are currently used. These are lethal injection, electrocution, firing squad, hanging, and lethal gas.
In 2004, Utah made lethal injection the only form of capital punishment. However, those already on death row were grandfathered on the type of execution they chose at sentencing. At the time of the change in the law, there were still three inmates on Utah’s death row who had selected firing squad.
The two states that still allow hanging are New Hampshire, which allows it at the decision of the Corrections officials, and Washington, at the decision of the condemned.
Today, there seems to be a shift toward less executions in less states. Some states have issued moratoriumns on executions while others have simply chosen to keep people on death row until they die a natural death. Most of this downward shift is because of the vast amount of litigation on behalf of condemned prisoners, the shortage of lethal injection drugs, the number of “botched executions”, and the high reliability of DNA testing on old cases. I expect this trend to continue.
When I was a law student, Swede Sullivan and myself received a unique opportunity by the Attorney General’s Office and the DOC here in Georgia. We were given a tour of death row in Jackson, GA.
I will never forget that day. I cannot think of a place on earth that was more hopeless and doomed than those small rooms side by side with glass walls holding prisoners waiting years for their ultimate human judgment.
The Warden also asked us to visit the old execution chamber. Here, Georgia’s electric chair was kept in a museum type atmosphere. We were asked to sit in the chair. As a future criminal defense attorney, I supposed I jumped at the chance and sat right down. As you may guess, it was an eerie feeling. I must note that Swede politely declined the offer.